Barth v. Borbe

• Decision Date: 29 April 2021
• Docket Number: No. 2:20-cv-2202 KJN P,2:20-cv-2202 KJN P
• Court: U.S. District Court — Eastern District of California
• Parties: SHAWN DAMON BARTH, Plaintiff, v. C/O BORBE, et al., Defendants.

SHAWN DAMON BARTH, Plaintiff, v. C/O BORBE, et al., Defendants.

No. 2:20-cv-2202 KJN P

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

April 29, 2021

ORDER

I. Introduction

Plaintiff is a state prisoner, proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983, and requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).

Plaintiff submitted a declaration that makes the showing required by 28 U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis is granted.

Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 1914(a), 1915(b)(1). By this order, plaintiff is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the initial partial filing fee from plaintiff's trust account and forward it to the Clerk of the Court. Thereafter, plaintiff is obligated to make monthly payments of twenty percent of the preceding month's income credited to plaintiff's trust account. These payments will be forwarded by the appropriate agency to the Clerk of the Court each time the amount in plaintiff's account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).

II. Screening Standards

The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).

A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous when it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989), superseded by statute as stated in Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) ("[A] judge may dismiss [in forma pauperis] claims which are based on indisputably meritless legal theories or whose factual contentions are clearly baseless."); Franklin, 745 F.2d at 1227.

Rule 8(a)(2) of the Federal Rules of Civil Procedure "requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). In order to survive dismissal for failure to state a claim, a complaint must contain more than "a formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atlantic, 550 U.S. at 555. However, "[s]pecific facts are not necessary; the statement [of facts] need only 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Erickson v.Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic, 550 U.S. at 555, citations and internal quotations marks omitted). In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Erickson, 551 U.S. at 93, and construe the pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984).

The Civil Rights Act

The Civil Rights Act under which this action was filed provides as follows:

Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See Monell v. Department of Social Servs., 436 U.S. 658 (1978) ("Congress did not intend § 1983 liability to attach where . . . causation [is] absent."); Rizzo v. Goode, 423 U.S. 362 (1976) (no affirmative link between the incidents of police misconduct and the adoption of any plan or policy demonstrating their authorization or approval of such misconduct). "A person 'subjects' another to the deprivation of a constitutional right, within the meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made." Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

Moreover, supervisory personnel are generally not liable under § 1983 for the actions of their employees under a theory of respondeat superior and, therefore, when a named defendant holds a supervisorial position, the causal link between him and the claimed constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979) (no liability where there is no allegation of personal participation); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978) (no liability where there is no evidence of personal participation), cert. denied, 442 U.S. 941 (1979). Vague and conclusory allegations concerning the involvement of official personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673F.2d 266, 268 (9th Cir. 1982) (complaint devoid of specific factual allegations of personal participation is insufficient).

III. Plaintiff's Allegations

Plaintiff's complaint contains a laundry list of alleged violations incurred while he was housed at California Medical Facility ("CMF") in Vacaville, from June 1, 2019, through June 1, 2020. In his introduction, plaintiff alleges "institutional terrorism," and claims that this is an action for damages against the California Department of Corrections ("CDCR") and defendants for their alleged failure to protect him. (ECF No. 1 at 2.) Plaintiff specifically alleges that he was: provided rotten food, denied fresh fruits and vegetables, and denied sufficient food; subjected to smoke in front of his bunk; locked outside and subjected to heat exceeding 90 degrees despite possessing a heat card; subjected to sexual harassment and threats of assault, emotional abuse, and sexual comments; denied accommodations under the Americans with Disabilities Act ("ADA"); subjected to obstruction of mail, both incoming and outgoing, and denied access to bible study; denied single cell status; and he was sent to the wrong prison where 1000 pages of legal work and other property was confiscated.

However, plaintiff then sets forth only two causes of action. First, he alleges that defendants Associate Warden Medina, Doe III, and Captain Brody violated the Eighth Amendment by denying plaintiff's medical needs; ADA accommodations, medications, equipment and classification; orthopedic surgeries; Prison Rape Elimination Act ("PREA") counseling; and workers compensation. (ECF No. 1 at 14.) He adds that defendants Borbe and Lockwood acted under color of state and federal law. (ECF No. 1 at 15.)

In his second cause of action, plaintiff names defendants Doe I, Brodie, Timms and PREA Compliance Manager (Doe 3), but then alleges that defendants Borbe and Lockwood violated plaintiff's Eighth Amendment rights by their "actions of neglect, intimidation, abuse, harassment and other violations of law against plaintiff." (ECF No. 11 at 15-16.) Specifically, plaintiff alleges a violation of "Title VI and the Office of Justice Program statute" which prohibits "harassment or use of racial slurs discrimination against gays, sexual conduct, retaliation for filing a complaint, or refusal by the agency to respond to complaints. . . .," and claims he has ahistory of being denied government programs. (ECF No. 1 at 16.) He claims that "both" defendants failed to protect plaintiff's physical and mental health, which he alleges "illustrates a pattern of unlawful conduct." (Id.) Then, in ¶ 68, plaintiff alleges that defendants Toure, Borbe and Lockwood failed to intervene or provide plaintiff "food of equal calories" and to stop the inmate food workers from the abuse. (ECF No. 1 at 17.)

Plaintiff names as defendants Correctional Officers S. Borbe, Lockwood, and Toure; Associate Warden J. Medina, Food-Line Supervisor Marie, Mail Room Officer K. House, and Ad Seg Captain Brody. Plaintiff seeks money damages and return or replacement of his confiscated property.

IV. Discussion

In addition to being confusing, plaintiff's pleading is a "shotgun" or "kitchen sink" pleading against myriad individuals for alleged violations that occurred throughout the year he was housed at CMF. "The plaintiff who files a kitchen-sink complaint shifts onto the defendant and the court the burden of identifying the plaintiff's genuine claims and determining which of those claims might have legal support. . . . It is the plaintiff['s] burden, under both Rule 8 and Rule 11, to reasonably investigate [his] claims, to research the relevant law, to plead only viable claims, and to plead those claims concisely and clearly, so that a defendant can readily respond to them and a court can readily resolve...